IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

 FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

STATE OF FLORIDA,

Petitioner,

v. Case No. 5D16-4292

JOHAN QUINONES,

Respondent.

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Opinion filed January 24, 2017

Petition for Writ of Prohibition,

Alan Apte, Respondent Judge.

Pamela Jo Bondi, Attorney General, 

Tallahassee, and Marilyn Muir Beccue, 

Assistant Attorney General, Tampa, for 

Petitioner.

J. Edwin Mills and Frank J. Bankowitz, 

Orlando, for Respondent.

PER CURIAM.

We grant Petitioner’s alternative application for a writ of certiorari to quash the trial 

court's December 14, 2016, order granting Respondent’s motion to strike the State's 

death penalty notice, filed in Orange County case number 2014-CF-008535. Although the 

Florida Supreme Court held in Hurst v. State, 202 So. 3d 40, 43 (Fla. 2016), that the 

amended statutory death penalty scheme is constitutionally infirm due to the lack of a 

requirement that the jury’s recommendation be unanimous, we agree with Petitioner that 
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the trial court should have severed the offending component of the statute. In reaching 

this conclusion, we manifest our agreement with Petitioner’s succinct argument:

[S]ubsection (2)(c) can be severed from § 921.141, Florida 

Statutes, leaving intact the legislative intent of providing a 

constitutional procedure for imposition of the death penalty in 

appropriate cases. Absent the specific language of 

subsection (2)(c), the statute requires the jury to make a 

recommendation for life or death. Pursuant to the judicial 

obligation to construe the statute in a constitutional manner, 

trial judges should ensure that all jury findings issued in the 

application of the death penalty are unanimous. This result is 

consistent with the Florida Supreme Court's determination 

that the statute's jury findings provisions as to the existence 

and sufficiency of the aggravating factors and that the 

aggravating factors outweigh the mitigating circumstances 

must be construed in a constitutional manner (requiring 

unanimity) so as to preserve the statute's viability. The 

absence of a legislative mandate on the nature of the jury vote 

can be easily cured through accurate jury instructions and 

simple interrogatories. It does not require any substantive rewriting of the law.

Furthermore, an unconstitutional provision of a statute 

can and should be severed from the remainder when the taint 

of the illegal provision has not infected the entire enactment. 

Schmitt v. State, 590 So. 2d 404, 414 (Fla. 1991). In this case, 

the provision declared unconstitutional does not taint the 

remainder of § 921.141(2) such that the entire statute must 

fail.

In our view, this statute presents a classic case where severance is appropriate 

under the four-part test adopted by the Florida Supreme Court in Cramp v. Board of Public 

Instruction of Orange County, 137 So. 2d 828, 830 (Fla. 1962). First, the unconstitutional 

provisions can be separated from the valid provisions. Second, the legislative purpose of 

preserving Florida’s death penalty can be accomplished without the offending provisions. 

Third, the “good and the bad” features are not so inseparable that the legislature would 

not have passed the good without the bad. Finally, a complete act remains intact without 
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the offending provisions. Because the requirement for a unanimous jury verdict is derived 

from our constitution, the constitution itself provides the missing element of a completed 

procedure for determining when a death sentence may be imposed. 

We certify the following question to the Florida Supreme Court as one of great 

public importance:

CAN AND SHOULD SUBSECTION 921.141(2), FLORIDA 

STATUTES, BE STRICKEN SO THAT THE REMAINING 

PORTIONS OF THE STATUTE ARE EFFECTUATED 

CONSISTENT WITH THE INTENT OF THE LEGISLATURE 

AND THE UNITED STATES AND FLORIDA 

CONSTITUTIONS?

PETITION GRANTED; ORDER QUASHED; QUESTION CERTIFIED.

ORFINGER, TORPY, and WALLIS, JJ., concur.